Coming Clean

Seller, Landlord Must Disclose Presence Of Lead Paint

WASHINGTON — A federal law that requires sellers and landlords of homes built prior to 1978 to disclose the presence of any known lead-based paint won't go into affect for at least 11 more months.

But that doesn't relieve you or your real estate agent from liability if you fail to reveal that fact, according to a Pennsylvania attorney who specializes in environmental law.

"There may not be any federal requirement to disclose between now and then," says Robert Fox of Manko, Gold & Katcher in the Philadelphia suburb of Bala Cynwyd. "But sellers should still be aware of the risk of nondisclosure, especially with federal regulations looming."

In some states, says Fox, if you are aware of a lead paint and fail to divulge it, you could be liable under common law. And in other states or localities, you may even be required by statute to determine whether or not your house contains lead paint.

Lead is one of the nation's most serious health risks, especially to children and pregnant women, according to health experts.

Even the lowest levels of lead in a child's body are believed to sometimes cause permanent neurological damage, including learning disabilities, lower IQs, impaired memories and behavioral problems; higher levels can induce kidney failure and sometimes death.

"Most people think children have to eat paint chips before lead poisoning becomes acute, but that's not true," says Claude Limoges of American Lead Consultants. "Research has shown that even low levels of exposure can cause a four-to-six-point drop in a child's IQ level."

In sufficient levels, lead from paint can even cause health problems in adults. But when properly maintained, paint containing lead poses little risk.

As long as it's not chipping or flaking, or it's covered by a fresh coat of, say, lead-free latex paint, it's pretty safe. It's only when the paint is disturbed during remodeling or renovation that it becomes a menace.

Lead-based paint was used extensively prior to 1978, when it was effectively banned by the Consumer Products Safety Commission. Though new evidence suggests that many pre-'78 apartments were painted with cheaper materials, it is estimated that 69.9 million homes and apartments -- 75 percent of the nation's housing stock -- contain the potential hazard.

Under the federal law, which was passed by Congress in 1992 and will apply to some 3 million sales and 9 million leases a year, sellers, landlords and their agents must disclose the presence of any known lead-based paint. Known as Title X, the all-encompassing law also applies to lead in water, soil and dust. But it is geared primarily to paint.

You won't have to have your pre-'78 house inspected to determine whether or not lead is present. But if you do and the examination reveals lead paint, you will have to notify the buyer of that fact.

If you choose not to have the place examined or your probe discovers no hazards, you still will be required to include a lead warning statement in your sales contract or lease.

Under the regulations proposed late last month by the Environmental Protection Agency and the Department of Housing and Urban Development, you, your buyer and your agent also would have to complete signed, dated disclosure forms and retain them for three years.

Additionally, you will be required to give the buyer a copy of a lead hazard information pamphlet being produced by the EPA. And you will have to give him 10 days to conduct, at his expense, his own lead-risk assessment on the property before he becomes obligated to complete the transaction.

The purchaser is not required to conduct an inspection. The law simply ensures that he has the opportunity to do so. And the inspection period can be lengthened, shortened or even waived by mutual written consent.

There is nothing in the proposed rule that would require an owner to remove lead-based paint if it is discovered during his inspection. As long as you disclose the hazards, it's up to the buyer to eliminate it.

But if a hazard was discovered during the buyer's 10-day grace period, he would have the option of renegotiating the transaction or dropping out altogether.

The regulations won't take effect until Oct. 28, 1995 at the earliest. But once they become final, failure to comply would open up sellers, landlords and their agents to damage suits as well as civil and criminal penalties. Besides fines up to $10,000 per violation, you could be liable for an amount three times the amount of damages incurred by each individual.

What's more, the federal rules will not supersede state and local regulations. Rather, they will act to complement them.

In other words, they do not limit the authority of state and local governments from imposing additional, more stringent requirements, either now while the rules are pending or later after they take effect. Nor will compliance under the federal regs eliminate your liability under other state or local laws.